SALEM, Ore. (Legal Newsline) – A widow will get her chance to prove the Oregon State Police should not have employed a trooper with a history of “tunnel vision” and being on edge because it was foreseeable that he would kill someone someday.
In 2015, two troopers were called to the house of Robert Box by his wheelchair-bound daughter, who he had struck several times in the face during an argument while Robert’s wife Bernadette was out of town. After she left for the hospital, they tried to silently make their way toward Box’s property.
But dogs and an apparent call from someone tipped Box off to their presence. Troopers Gregor Smyth and Heather West testified he came out with a gun, and the situation only got messier from there.
From the Oregon Court of Appeals' May 12 opinion:
“Smyth acknowledged that he experienced tunnel vision when he saw Box holding the gun: ‘I’ve got both hands on my gun, and I see my gun crystal clear. And I don’t see his head and I don’t see his legs. I have nothing, I’ve got tunnel vision, I don’t see anything.’ Smyth also experienced ‘auditory exclusion.’ West did not see Box point the gun at her.
“On West’s dash-cam recording, Box can be heard saying something that sounds like ‘hang on’ before Smyth identifies himself as law enforcement. Smyth says ‘Trooper Smyth and Trooper West, state police, you are being recorded.’
“While Smyth is speaking, Box says ‘Oh’ in a surprised manner. Almost immediately after Smyth finishes identifying himself and West, Smyth says don’t go for that gun.’
“Box says something in response that is difficult to discern. Plaintiff contends that Box states, ‘Let me show you I’m getting this outta here.’ Defendant argues that the statement is unintelligible. West begins to yell ‘get your hands—‘ before she is cut off by the sound of gunfire.
“Smyth fired his gun first, and West fired second. Box dropped the gun in the back of the truck bed and fell to the ground. Box never fired the gun. It was recovered in the rear of the truck bed, behind the wheel well on the passenger’s side, the side nearest the rear patio. Smyth fired seven rounds, five of which struck Box. West fired four, and struck Box twice.”
An autopsy showed Box was shot while bending down. The lawsuit alleges the troopers were trespassing, considering the alleged victim of domestic abuse was no longer at the residence, and that Smyth’s history of tunnel vision contributed to the shooting.
In 2009, he responded to a call of an officer in need of assistance by driving more than 100 miles per hour in a 35 mph zone, sometimes on the wrong side of the road, even after the officer had reported she no longer needed assistance.
“Smith stated that he remembered thinking about ‘images’ of police officers ‘losing their lives or coming close to it’ during his response,” the decision says.
Four years later, he joined the unit’s SWAT Team but received five written complaints – one of which that said he was “in a heightened state and seemed to be on edge constantly, and appeared unable to calm down.”
Complaints said he had a tendency to get overwhelmed and focus on one problem with tunnel vision.
“One complainant wrote that Smyth’s ‘decision making and overreaction have the potential to lead to someone being seriously injured, or killed, on a real world operation,’” the decision says.
Smyth was fired from the SWAT team but retained his trooper position, a negligent retention of his employment, the lawsuit alleges.
A trial judge in Josephine County said the defendant Oregon State Police was entitled to immunity, granting its summary judgment motion. He also ruled against Bernadette Box’s trespassing claim.
Both of those decisions, however, were overturned by the Court of Appeals, setting the stage for a possible trial in which the troopers are now found to have been trespassing on Box’s property. Authorities did not file criminal charges against the troopers.